ADESINA KAYODE V. THE STATE

ADESINA KAYODE V. THE STATE

 final
In The Court of Appeal
Ibadan Judicial Division
On Friday, the 6th day of January, 2012
Suit No: CA/I/126/2010
 
Before Their Lordships
 
          STANLEY SHENKO ALAGOA    ……. Justice, Court of Appeal
ADZIRA GANA MSHELIA    ……. Justice, Court of Appeal
MODUPE FASANMI    ……. Justice, Court of Appeal
    
 
Between
ADESINA KAYODE    Appellant
            
 
      And
                   
THE STATE    Respondent
        
 
                  

 

 


     

COUNSEL:
                              
Ikenna Okoli Esq. with N. Ilomuanya   – For the Appellant

                              
J. K. Omotosho Esq., Deputy Director of Public Prosecutions, Ministry of Justice Ogun State for the Respondent.    -For the Respondent

 

JUDGMENT:

    
STANLEY SHENKO ALAGOA, J.C.A.: (OFR) (Delivering the Leading Judgment): In the High Court of Justice Ijebu-Ode, Ogun State of Nigeria, the Appellant as 2nd accused along with two others were charged with the following offences -

COUNT 1

STATEMENT OF OFFENCE

CONSPIRACY TO COMMIT ARMED ROBBERY contrary to section 6(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Ad, (Cap R.11), Laws of the Federation 2004.

COUNT II

ARMED ROBERRY contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, Laws of the Federation of Nigeria 2004.

The case for the prosecution was that on the 7th May 2007 at about 9.30p.m. one Osiyemi Niyi, Managing Director of FAO constant petroleum at Irese, Ijebu ode and who in the course of trial testified as PW1 had closed for the day at the Filling station. He took with him while driving away from the Filling station the sum of three hundred and fifty five thousand, one hundred and fifty naira which was the proceeds from the day's sales. In his car with him, was a staff of his company, while on this journey, PW1 at some point saw a motorcycle with three men coming behind him. The Motorcycle overtook and blocked him on the road in front. The three men on the motorcycle came down, beat and injured him with a broken bottle and went away with the money he was carrying in the car as well as two mobile phones. His staff who was accompanying him in the car however managed to escape. A chase of PW1's attackers by some sympathizers around proved abortive. On return to the Filling Station, PW1's brother by name Leke Osiyemi told PW1 that he saw the 1st accused person around the Filling station that day. The police arrested the 1st accused who upon arrest confessed to the crime and mentioned the name of the Appellant as having also taken part in the crime. The Appellant was arrested and also confessed to the crime. The Confession of the 1st accused also led to the arrest of yet another accused. All three were arraigned, tried, convicted and sentenced to death by the court's judgment delivered on the 23rd December 2009. It is against this judgment that the 2nd accused now as Appellant is appealing. The Appellant's Notice of Appeal is dated the 30th December 2009 and filed on the 18th January 2010. This Court granted the Appellant leave to amend the Notice of Appeal on the 29th September 2010 following an application on Notice dated the 23rd June 2010 and filed same day pursuant to Order 16 Rule 3 (3) of the then Court of Appeal Rules 2007 and the inherent jurisdiction of this court. The Amended Notice of Appeal deemed by this court to be properly filed and served on the Respondent on the 29th September 2010 is reproduced hereunder devoid of particulars -

GROUNDS OF APPEAL

1. That the decision of the High court is unreasonable and cannot be supported having regard to the evidence.

2. The learned trial Judge erred in law in admitting Exhibit "G" (the alleged Confessional Statement) in evidence and/or attaching any or much weight to the said Exhibit "G" and consequently convicting the Appellant based on the said Exhibit "G".

3. The learned trial Judge erred in law by finding the Appellant guilty of the offence of Conspiracy to commit armed robbery.

4. The learned trial Judge erred in law in finding the Appellant guilty of Armed Robbery.

From the grounds of appeal contained in the Amended Notice of Appeal the Appellant has formulated the following issues for the determination by the Court of Appeal -

(i) Whether the trial court was right in admitting Exhibit "G" (the alleged Confessional Statement of the Appellant) in evidence and/or attaching any or much weight to the said Exhibit "G" and convicting the Appellant based on the said Exhibit "G".

(ii) whether the Respondent proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

These Issues are contained in paragraph 3.01 at pages 2 and 3 of the Appellants Brief of Argument dated the 28th October 2010 and filed 56me day, but however deemed by this Court to have been properly filed and served by the grant by this Court on the 27th January 2011 of an application on Notice dated the 28th October 2010 and filed same day by the Applicant pursuant to Order 7, Rule 10(1) of the then Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court for inter alia an order to enlarge time for the Appellant/Applicant who was out of time in filing his Brief of Argument to now do so and also to deem the Appellants Brief of Argument dated the 28th October 2010 and filed same day to be property fired and served on the Respondent. Following this court's grant of the said application on Notice, the Appellants Brief of Argument dated the 28th October 2010 and filed same day was deemed properly filed and served on the Respondent on the 27th January 2011 being the day the said order of court was granted.

The Respondent (THE STATE) also distilled two issues for determination in her Brief of Argument dated the 14th May 2011, filed on the 20th June 2011 but deemed properly filed and served on the Appellant on the 5th July 2011 following the grant on that day of an application on Notice brought by the Respondent dated the 20th June 2011 and fired same day pursuant to order 7 Rule 10 of the then court of Appeal Rules 7007 for inter alia an order of court for the Respondent being out of time in filing and service of the Respondents Brief of Argument and also to deem the Respondents Brief of Argument already filed and served on the Appellant as properly so filed and served, The grant of the said application meant that the Respondents Brief of Argument was deemed filed and served on the Appellant on the 5th July 2011 being the day the application was moved and granted by this court. The said Issues distilled by the Respondent are as contained in paragraph 3 at page 5 of the Respondent's Brief of Argument, The Issues are as follows -

(i) whether the trial court was right in admitting Exhibit "G" (the confessional Statement of the Appellant) in evidence and attaching evidential weight to it and using same in convicting the Appellant.

(ii) whether the Respondent proved the offences of Conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

Issues formulated by the Appellant and the Respondent in their respective Briefs of Argument are exactly the same. On the 12th October 2011, this appeal came up before us to be heard and determined. Counsel on both sides adopted and relied on their respective Briefs of Argument, Ikenna Okoh with him N. Ilomuanya for the Appellant urged us to allow the appeal and set aside the judgment of the trial High Court while J. K. Omotosho, Deputy Director of public Prosecutions Ministry of Justice Ogun State and Counsel for the Respondent urged us to dismiss the appeal and affirm the judgment of the trial High court.

I think a single issue i.e. whether the prosecution has proved conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt to justify his conviction and sentence will suffice in the determination of this appeal. I say so because this issue cannot be fully dealt with without this Court giving consideration the propriety of the court below admitting Exhibit "G" which undoubtedly weighted so much in the mind of the trial Judge in convicting the Appellant. In essence Exhibit "G" and its admission by the trial court goes to the very foundation of proof beyond reasonable doubt which the prosecution ought to discharge before the Appellant can be convicted.

Having said all this, the charge against the Appellant is for conspiracy to commit Armed Robbery and Armed Robbery. Although intricately interwoven, conspiracy to commit Armed Robbery and Armed Robbery are two separate offences. It has however been the practice and courts are so enjoined to treat the offence of Armed Robbery before the offence of Conspiracy to commit Armed Robbery in dealing with Robbery cases and that has been the practice adopted throughout this write-up' What is "Armed Robbery" under the provisions of the Robbery and Firearms (special provisions) Act Cap R.11, Laws of the Federation of 'Nigeria 2004 under which the Appellant was charged, tried, convicted and sentenced to death? In its simplest connotation Armed Robbery means the commission of a Robbery with Arms. For a Fuller understanding of the offence of Armed Robbery therefore it is necessary to define the words "Robbery" and "Arms." The word "Robbery" Under the Act means -

"Stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained."

In the definition of the word "Arms" the word "stealing" has cropped up. What then is "Stealing? The Act goes on to define the word "Steal" as -

"to take or convert to one's use or to the use of any other person other than immovable property with any of the following intents -

(a) an intent permanently to deprive the owner of the thing of it;

(b) an intent permanently to deprive any person who has any special property in the thing of such property, the term "special property" here including any charge or lien upon the thing in question and any right arising from or dependent upon holding possession of the thing in question and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person for his benefit;

(c) an intent to use the thing as a pledge or security;

(d) an intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform;

(e) an intent to deal with the thing in such a manner that it cannot be returned in the condition in which it was at the time of taking or conversion;

(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner."

The word "Arms" under the Act is subdivided into "firearms" and "Other offensive weapons".

"Firearms include any cannon, gun, rifle, carbine, machine gun, cap-gun, flint lock gun, revolver, Pistol, explosive or ammunition or other firearm, whether whole or in detached Pieces."

The term "Other offensive weapons" under the Act means -

"any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow spear, cutlass, dagger, or any Piece of wood, metal, glass or stone capable of being used as an offensive weapon".

It will be seen from this definition and without prejudice to the later finding of this Court as to the guilt or innocence of the Appellant that a bottle in the possession of a robber would most certainly constitute "arms". I think it is safe to say that any object in the hands of a robber which creates in the mind of the victim a reasonable apprehension that were it used on his person would cause death or harm must certainly fall under "arms" by the provision of the Robbery and Firearms (Special Provisions) Act 2004. The notion somewhat widespread that wood, stick, stone or bottle do not constitute "arms" under the Robbery and Firearms (Special Provisions Act 2004) must therefore be discarded. The actual use of the weapon or object on the person of the victim while dispossessing him is not actually necessary. The alleged robber need not even say to his victim, "Give me so and so or I am going to harm you," neither should the victim afterwards be heard to say;" I thought that if I did not part with so and so, he (the robber) would kill or harm me". The test therefore of what constitutes "arms' under the Act cannot merely be subjective. The test therefore must be what an average, normal, right thinking person placed in the same circumstances as the victim would have been expected to think. The purport is that ordinary common place objects which under normal circumstances would not be regarded as offensive such as stone, sticks and bottles would be regarded under the Act as offensive weapons when used to dispossess persons of their property. Having defined the term "Armed Robbery" the next paramount question is or ought to be, what constitutes the offence of Armed Robbery? What in other words are the ingredients of Armed Robbery?

There are three ingredients that constitute the offence of Armed Robbery. They are as follows:-

(a) That there was a robbery or series of robberies.

(b) That the robberies were armed robberies.

(c) That the accused persons were or some of the People that committed the armed robbery.

There are numerous authorities on this legal requirement. See ANI V. STATE (2003) 11 NWLR (PART 380) 142; NWACHUKWU V. STATE (1985) 3 NWLR (PART 11) 218; OKOSI V. STATE (1989) 1 NWLR (PART 100) 642; BOZIN V. STATE (1985) 2 NWLR (PART 8) 465; ALABI V. STATE (1993) 7 NWLR (PART 307) 511.

 

The burden of proof of the offence of armed robbery is on the prosecution and such proof is beyond reasonable doubt as distinguished from proof beyond a shadow of doubt. To this end Section 135 (1) & (2) of the Evidence Act 2011 provides as follows -

135(1) – If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt,

135(2) – The burden of Proving that any person has been guilty of a crime or wrongful act, is subject to section 139 of this Act on the person who asserts it whether the commission of such act is or is not directly in issue in the action.

There is a plethora of case law on this subject matter based on section 138 of the Old Evidence Act which has similar provisions as section 135 of the Evidence Act 2011. That this is the position of the law is amply illustrated in NWOSU V. STATE (1998) 8 NWLR (PART 562) 433 at 444 thus:

"In all criminal trials, the burden of proof is always on the prosecution in proving beyond reasonable doubt the guilt of the accused. Failure to do so will automatically lead to the discharge of the accused".

Nnaemeka Agu (JSC) of blessed memory succinctly put the burden on the shoulders of the prosecution to prove criminal cases beyond reasonable doubt which burden never changes thus," The prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt against the accused". See also the following cases on this same subject matter NWEKE V. STATE (2001) 4 NWLR (PART 704) 588; (2001) 15 WRN 96; AIGBEDION v. STATE (2000) 7 NWLR (PART 666) 686 at 704; (2ooo) 4 SCNJ 1; ARUMA V. STATE (1990) 6 NWLR (PART 155) 125; (1990) 10 SCNJ 5; HASSAN V. STATE (2001) 35 WRN 175; (2001) 6 NWLR (PART 709) 285; UMEH V. STATE (1978) 6-7 SC 27; TANKO V. STATE (2008) 16 NWLR (PART 114) 597. The list of judicial authorities and pronouncements on this most important legal principle is indeed in exhaustive. Having thus established that the burden in criminal matters is on the prosecution to prove that the said crime was committed by the accused (in this case the Appellant) beyond reasonable doubt we shall now proceed to consider the ingredients of the crime of armed robbery for which the Appellant stands convicted and condemned to death. Was there ever a robbery of PW1 Osiyemi Rafiu Niyi at about 9.30 p.m. on the 7th May, 2007? The evidence of PW1 is at pages 42 and 43 of the Record of Appeal. His evidence is simple and straightforward. He had left the Fao Petrol Filling Station Ilese where he is Managing Director after close of work at about 9.30 p.m. in his car with one of his attendants. He also took along with him in his car the day's sales amounting to N357,150.00 when a motorcycle at some point overtook and blocked his car in front. The motor-cycle conveyed three persons. The three men rushed down from the motorcycle, opened the door of his car and attacked and beat and slapped him, stabbing him also with a broken bottle they were holding. His attendant who accompanied him in the car managed to escape. The men took away the money he had with him in the car as well as two handsets and threw away the keys of his car. Efforts by some sympathisers to apprehend the three men proved abortive.

The robbery was later reported to the police. Cross-examination of PW1 as can be seen at pages 43 and 44 of the Record of Appeal did not destroy the evidence of PW1 that he was robbed of N357,150.00 and two handsets by three men at about 9.30 p.m. on the 7th May, 2007. The requirement as to robbery under the Robbery and Firearms (Special Provisions) Act Cap R.11 Laws of the Federation of Nigeria 2004 would appear to have been satisfied in the sense that the three men not only stole PW1's money and handsets but at the time of doing so used actual violence to his person in order to obtain and retain the stolen money and handsets. In doing so the men manifested an intent to deprive PW1 of the money and handsets, They also manifested an intent to use the money so stolen at their will. Was the Robbery an armed robbery? The evidence of PW1 which has also not been destroyed by cross-examination at pages 43 and 44 of the Record of Appeal is that aside from the beating and slapping meted out to him by the three men, he was also stabbed with a broken bottle in the possession of the three men at the time he was being disposed of his money and handsets. A broken bottle while not constituting "firearms" under the Act must be taken to include objects under the Act that are described as "Other offensive weapon". For the avoidance of doubt the term "glass" which is included under the Act as an "offensive weapon" must be taken as synonymous with "bottle" or "broken bottle" allegedly used by the three men in attacking and dispossessing PW1 of his money and handsets.

It must be stated that a list of objects or items categorized under the Act as "Other offensive weapons" cannot be exhaustive and will include any object in the possession of the robber which creates fear or apprehension in the mind of a robbery victim or in the mind of an average, normal, reasonable person that were such an object used on his person, death or some appreciable harm would be done to his person. This is only an elaboration of the point I had made earlier in this write-up. It is therefore clear that whoever were the three men that beat, slapped and stabbed PW1 with a broken bottle on the 7th May 2007, faceless as they may seem were not just robbers but Armed Robbers. Unfortunately this definition under the Act of what constitutes "Arms" or "Other offensive weapon" is not fully appreciated by most young people who sometimes take the law into their hands, thinking that were they apprehended, they would probably get off with a light sentence for assault. Such persons are usually very surprised and completely flabbergasted when seemingly simple crimes turn out to be armed robbery for which they are charged, convicted and sentenced to death. The reality of the situation does not quite dawn on them that they have to face the hangman's noose or the very hot bullets of a firing squad. The need for some form of education and enlightenment of the youth on the dangers of not keeping straight cannot at this time be over-emphasised. This observation is however made without prejudice to the appeal now being considered.

Was the Appellant one of the three armed robbers that attacked and dispossessed PW1 on the 7th May 2007? Admittedly this is not a simple nut to crack and arguments would tend to dovetail and criss cross one another. The position is made more difficult and complicated by the fact that there were no eyewitnesses to the armed robbery attack on PW1. PW1 in his evidence-in-chief and under cross-examination did not link the Appellant or any of his supposed accomplices with having attacked and robbed him in the night of the 7th May 2007. The remotest clue to the armed robbery attack which could not in itself have been incriminating is the information passed on to pw1 by his brother Leke Osiyemi that he saw one Kola Okunade, a staff of PW1 who had reported sick and was not on duty in any of the two Filling Stations owned by PW1, around the Filling station on the day of the incident. The police was informed and Kola Okunade (1st accused) was picked up and allegedly confessed to have participated in the armed robbery attack on PW1. He then gave the names of the Appellant and another as having participated in the armed robbery attack on PW1. This information led to the arrest of the Appellant who allegedly made a confessional statement linking him to the armed robbery attack on PW1 which confessional statement the Appellant denied making voluntarily. After a trial within trial, the learned trial Judge admitted the confessional statement of the Appellant as Exhibit "G', having been adjudged voluntarily made by the Appellant.

It has always been and is still the law that an accused person can be convicted on his confession alone provided such a confession is positive and direct' such a confession need not be corroborated once the court is satisfied as to its truth. See AKPA v. STATE (2008) 14 NWLR (PART 1106) 72. A confessional statement is and certainly must be the most compelling evidence that accused person committed the crime for which he faces prosecution. Taken in that light the evidence of eyewitnesses to the crime take second place to that of a confession freely given by the accused person.

As a further safeguard for ensuring that a confessional statement was indeed made voluntarily, the Courts have over time fashioned out six tests which are as follows -

1. Is there anything outside the confessional statement to show that it is true?

2. Is it corroborated?

3. Are the relevant statements made in it of facts as can be tested?

4. Was the Prisoner one who had the opportunity of committing the crime?

5. Is his confession Possible?

6. Is it consistent with other facts which have been ascertained and Proved?

See the following cases – NSOFOR V. STATE (2005) 4 WRN (2005) All FWLR (PART 242) 397; OJEGELE V. STATE (1988) 1 NWLR (PART 71) 414; NWACHUKWU V. STATE (2007) 17 NWLR (PART 1062) 31,. DAWA V. STATE (1980) 8-11 SC 236; R v. OBIASA (1962) 1 All NLR 65; KANU v. R. (1952/55) 14 WACA 30.

It has become necessary to subject Exhibit "G" to the searchlight of these tests. Exhibit "G" gives in graphic detail what transpired on the 7th May 2007 and how, instigated by one Kolawole Okunade (1st Accused) who the Appellant described as a childhood friend and school mate and in concert with the 3rd accused the armed robbery attack on PW1 had taken place. The Appellant had explained how the 1st accused Kolawole Okunade had been cheated by somebody and solicited his assistance in beating up the person. Kolawole Okunade, Appellant stated, had provided the motor-cycle with which the three accused persons intercepted PW1's Benz car and how he used the beer bottle with him to "treat" PW1. It was in the course of the attack on PW1 that he (Appellant) took PW1's handset – a Nokia.

Is there anything outside this confession to show that it is true? The answer must be in the affirmative. No. 33129 PC Babalola Solomon in the course of the trial within trial at page 56 of the Record of Appeal stated how Kolawole Okunade upon being arrested had mentioned the name of the Appellant as an accomplice in the commission of the armed robbery which led to the arrest of the Appellant. PC Solomon also stated how before volunteering his statement the Appellant had handed over a Nokia handset to him which the Appellant said he had taken from PW1's car. The fact that the Nokia handset belonged to PW1 was confirmed by PW1. The learned trial Judge's evaluation of this piece of evidence to my mind is sound and beyond reproach.

How could PC Solomon have known these facts when they were not within his personal knowledge?

Is the confession corroborated? Exhibit "G" the confessional statement of the Appellant was corroborated by Exhibit "C" the confessional statement of the 1st accused. Indeed it was on the basis of Exhibit "C" that the Appellant was arrested leading to Exhibit "G". PC Solomon had stated in the course of the trial within trial that the Appellant handed over to him a Nokia handset which belonged to PW1. In his evidence-in-chief at page 43 of the Records PW1 confirmed the recovery of one of his two handsets – a Nokia stolen from his car during the armed attack on him on the 7rh May 2007. This piece of damaging evidence was not even addressed during cross-examination of PW1 talk less of the said evidence being demolished. The answer to that question must therefore be answered in the positive.

Are the statements made in Exhibit "G" true as can be tested? Here again the answer must be in the positive. The Appellant in Exhibit "G" gave graphic details of how the armed robbery attack on PW1 was hatched and precisely executed by him and two others, These accounts were confirmed by the prosecution witnesses and other co-accused persons in their own confessional statements. Mention must be made here again to the Nokia handset which PC Solomon in his evidence during the trial within trial stated was handed to him (Solomon) by the Appellant who had told him that he (Appellant) took the handset – a Nokia from the PW1's car during the armed attack on PW1 on the 7th May 2007. PC Solomon's evidence is that PW1 when contacted confirmed that the stolen and now recovered Nokia handset in fact belonged to him. PW1 in his own evidence-in-chief confirmed recovery of one of his two handsets – a Nokia taken from his car during the armed attack on him.

Was the Appellant one who had the opportunity of committing the offence? The answer to this question must also be in the positive. The Appellant had been an employee of PW1 and knew what time he closed for the day. Moreover information from PW1's brother was to the fact that the Appellant had been hanging around PW1's Filling Station for some time prior to the incident on the 7th May 2007. As an employee of PW1 he was an insider who had the opportunity to operate which an outsider may not have had.

Is his confession possible? This again must be answered in the positive. Criminals are known to confess to their crimes from time to time. Why this is so is a matter for conjecture and had better be left for the sociologist, psychologist and criminologist who have the necessary professional skills to dig deep into the inner recesses of the mind of the criminal. It is not a matter within the realm or ambit of this discourse. The bottom line is that confessions to participation in a crime do take place. Is it in the hope of getting a reprieve, pardon or lighter sentence or is it simply to say it all and be at peace? The reasons may very well be subjective. In this instance Exhibit "G" was not only possible but was actually voluntarily made by the Appellant. The evidence of PC Solomon at the trial within trial at pages 56 and 57 of the Record of Appeal that he never beat the Appellant to extract a confession from him was not demolished by cross-examination, neither was the evidence of PC Solomon that the Appellant voluntarily handed over to him (PC Solomon) a Nokia handset belonging to PW1 which he (the Appellant) stole during the armed attack on PW1 demolished during cross-examination. Is Exhibit "G" consistent with other facts which have been ascertained and which have been proved? The totality of the Prosecution's case put forward so far is eloquent testimony to the fact that the Appellant's confessional statement is consistent with other facts which have been ascertained and proved. Appellant had stated at page 4 paragraphs 4.14 and 4.15 as follows -

"We submit that it is a notorious fact that the Nigerian Police routinely use torture to extract confessional statements from accused persons, especially persons accused of armed robbery, irrespectively of whether or not such accused persons participated in the robbery."

"In an August 2010 report on Nigeria Police by Human Rights Watch titled "Everyone's in on the Game" – Corruption and Human Rights Abuses by the Nigeria Police Force, at page 42, the authors cited a report of UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment which found in 2007 that "torture and ill treatment are widely practiced in police custody" and are an "intrinsic part of the functioning of the police in Nigeria."

These Observations and Report must be disturbing to every discerning and fair minded person and should not be brushed aside with a wave of the hand. The Inspector General of Police may well be advised to look critically and objectively at this Report to ascertain its veracity. In the present case now on appeal all the facts and evidence point to the conclusion that Exhibit "G" was voluntarily made by the Appellant and I think I should here commend PC Solomon for his deft handling of the investigation resulting in the arrest and prosecution of the Appellant. Through tact and diplomacy he was able to get the Appellant to make a confession which ordinarily would not have been possible. Cross-examination of PC Solomon does not show that he applied, any force or threat on the Appellant to obtain Exhibit "G". Appellant in reliance on USUFU V. STATE (2007) 1 NWLR (PART 1020) 94 had submitted that PW1's attendant who was with him when the armed robbery attack allegedly took place was a vital witness and failure to call him to testify was fatal to the prosecution's case. In USUFU V. STATE (Supra) that court held as follows -

''Although the prosecution need not call a host of witnesses on the same point, where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other that witness ought to be called".

In USUFU V. STATE (Supra) two men came to the aid of the victim when she was attacked. Certainly those two men were vital witnesses and ought to have been called as witnesses. The two men may even probably have identified those responsible for the attack on the victim. The position in the present appeal before us is different. The evidence of PW1 is that as he was being attacked by the three men who had alighted from the motor-cycle conveying them, his attendant managed to escape. What vital evidence could the prosecution possibly have elicited from PW1's attendant if he were indeed fielded? In any case it has been stated time and again in a number of decided cases that it is the duty of the prosecution to call witnesses that will enhance its case and on no account should the defence dictate to the prosecution who to call as witnesses. See IJIOFO V. STATE (2006) 6 NSCOR (PART 1) 209 at 237. Definitely where there are vital witnesses whose evidence will settle the matter once and for all, the prosecution ought to and should call them to give evidence and failure to do so may be fatal to the prosecution's case but it must be reiterated that such witnesses must be considered vital witnesses. PW1's attendant was not such a vital witness. He could not have been expected to give a more detailed evidence than PW1 did having fled from the scene. Learned counsel for the Appellant has also stated at page 9, paragraph 4.48 of the Appellant's Brief of Argument that the Appellant was not arrested at the scene of crime and had otherwise been engaged elsewhere when the robbery took place. That invariably puts into issue the defence of alibi. It is the law that once a defence of alibi has been raised, it is the duty of the prosecution to investigate it. See ADEDEJI V. STATE (1971) 1 ALL NLR 75.

However the Supreme Court has also held with just about the same emphasis that the non investigation of an alibi may not necessarily amount to an admission by the prosecution that the accused was not at the scene of crime and the prosecution may well have proved its case against an accused if the accused defence has been crushed by the sheer weight of the evidence adduced by the prosecution. See RASHEED OLAIYA V. STATE (2010) ALL FWLR (PART 514) 1; MICHEAL HAUSA v. STATE (1994) 6 NWLR (PART 350) 281.

I think this is apposite here. I find the charge of Armed Robbery against the Appellant proved and I find no reasons to disturb the findings of the trial High Court below.

I shall now turn my attention to the Conspiracy charge for which the Appellant stands convicted and sentenced to death and has appealed to this court. As stated earlier Conspiracy is a separate and distinct offence from Armed Robbery but the two offences are intricately interwoven where accused persons have been charged with the offence of armed robbery. Conspiracy is simply the meeting of minds of the conspirators. It consists of the intention of two or more persons to do an unlawful act or to do a lawful act by unlawful means. Circumstantial evidence is enough to ground a conviction for the offence of conspiracy. Once there are reasons or grounds to believe that there has been a conspiracy to commit a crime, whatever is done or said by anyone of the conspirators in furtherance of the common intention of the other conspirators will be regarded as sufficient evidence against the other conspirators. In the present case now on appeal therefore all that the prosecution need prove is that there was an agreement or an intent by the Appellant with other persons (in this case 1st & 3rd accused persons) to commit the offence of armed robbery against PW1. See generally the following cases – NWANKWOALA V. STATE (2006) ALL FWLR (PART 399) 801; WAZIRI v. STATE (1997) 3 NWLR (PART 496) 699; PATRICK NJOVENS v. STATE (1973) 5 SC 17; (1973) 1 NMLR 331; ODUNEYE V. STATE (2001) 2 NWLR (PART 697) 311; UPAHAR V. STATE (2003).6 NWLR (PART 815) 230; (2003) FWLR (PART 139) 1512; R V. ASPINALL (1876) 2 QBD 48.

It will be unduly repetitions to restate the evidence of PW1 and PW2 which point to the participation in the armed robbery attack on PW1 by the Appellant in concert or agreement with others. Their evidence was not demolished by cross-examination. The Confessional statement of the Appellant – Exhibit "G" is also in harmony with the confessional statement of Okunade Kolawole (1st accused) a former employee of PW1 who was in fact the mastermind of the robbery attack. It was through his confessional statement Exhibit "C" that the Appellant was arrested. I therefore find the two count charge of Conspiracy to commit Armed Robbery and Armed Robbery proved by the prosecution beyond reasonable doubt and I find no reason to disturb the finding of the trial Judge on these counts.

The appeal is dismissed and the conviction and sentence of death passed on the Appellant by Ogunsanya J. of the High Court of Justice in Charge No. HCJ/5C/2008 on the 23rd December 2009 is hereby affirmed by me.

 

 

ADZIRA GANA MSHELIA, J.C.A.: I have read before now the judgment just delivered by my learned brother ALAGOA, J.C.A., OFR. I entirely agree with the reasoning and conclusion arrived at that the appeal is devoid of merit. I too dismiss the appeal and affirm the conviction and sentence passed on the appellant by Ogunsanya J. of the High Court of Justice in charge No.HCJ/5c/2008 on the 23d December, 2009.

 

 

MODUPE FASANMI, J.C.A.: I had a preview of the judgment just delivered by my learned brother S. S. Alagoa (OFR) J.C.A. He has admirably and satisfactorily dealt with all the issues that have arisen in the appeal.

I entirely agree with the reasoning and conclusion reached that the appeal has no merit and it ought to be dismissed.

I dismiss the appeal. I abide with the consequential orders made in the lead Judgment.